Citation Nr: 0738944
Decision Date: 12/11/07 Archive Date: 12/19/07
DOCKET NO. 97-01 233 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for Meniere's Disease
secondary to service-connected bilateral sensorineural
hearing loss and tinnitus.
REPRESENTATION
Appellant represented by: Jeany Mark, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
J. Rose, Counsel
INTRODUCTION
The veteran had active military service from December 1964 to
October 1968.
This matter comes before the Board of Veterans' Appeals
(Board) from a November 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts. The appeal originally included the
issues of entitlement to increased ratings for bilateral
sensorineural hearing loss and tinnitus and entitlement to a
total disability rating based on individual unemployability
due to service-connected disabilities. However, these issues
are no longer on appeal. The veteran indicated on a VA Form
21-4138, submitted at a pre- hearing conference to his
February 2002 Travel Board hearing, that he wished to
withdraw his appeal as to the issues of increased ratings for
his bilateral sensorineural hearing loss and tinnitus. The
claim for individual unemployability due to service-connected
disability was granted by the RO in a February 2004 rating
decision. Therefore, the only issue remaining for appellate
consideration is entitlement to service connection for
Meniere's Disease secondary to service-connected bilateral
sensorineural hearing loss and tinnitus.
In June 2002, the Board issued a decision in this case.
Thereafter, the veteran filed an appeal with the United
States Court of Appeals for Veterans Claims (Court). In an
April 2003 Joint Motion for Remand, VA and the veteran agreed
that the case needed to be remanded for further consideration
of the Veterans Claims Assistance Act of 2000 (VCAA). In a
May 2003 Order, the Court granted the Joint Motion for Remand
and vacated the Board's June 2002 decision. The Board issued
a remand in December 2003, consistent with the May 2003
Order.
Service connection was denied for Meniere's Disease in a July
1986 Board decision. However, the Board considers the
veteran's current claim of entitlement to service connection
for Meniere's Disease as a new and different claim from the
claim denied in July 1986 because that decision only dealt
with direct service connection and he instituted the current
claim for service connection for Meniere's Disease in March
1996 as being secondary to his service-connected hearing loss
and tinnitus. Therefore, the Board will consider the current
claim as a de novo claim.
As the veteran has appeared before two different Board
members for hearings during the pendency of this appeal, the
issue on appeal is addressed by a three-member Board panel.
FINDING OF FACT
Meniere's Disease was first diagnosed in 1980, many years
after the veteran's separation from his military service; the
preponderance of the evidence is against a finding that
Meniere's disease is related to service or to a service
connected disability.
CONCLUSION OF LAW
Meniere's Disease was not incurred or aggravated during
active military service, and was not proximately due to or
the result of service-connected disability. 38 C.F.R. § 1110
(West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
In correspondence dated February 2005, the RO satisfied its
duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West
2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO
notified the veteran of: information and evidence necessary
to substantiate the claim for service connection; information
and evidence that VA would seek to provide; and information
and evidence that the veteran was expected to provide. The
veteran was instructed to submit any evidence in his
possession that pertained to his claim.
VA has done everything reasonably possible to assist the
veteran with respect to his claim for benefits in accordance
with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c)
(2007). VA has also complied with the May 2003 Order.
Service medical records have been associated with the claims
file. All identified and available treatment records have
been secured. The veteran has been medically evaluated in
conjunction with his claim. The duties to notify and assist
have been met.
In light of the Board's denial of the veteran's claim, no
additional disability rating or effective date will be
assigned, so there can be no possibility of any prejudice to
the veteran under the holding in Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). For the above reasons,
it is not prejudicial to the veteran for the Board to proceed
to finally decide the issues discussed in this decision. See
Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v.
Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App.
384 (1993); see also 38 C.F.R. § 20.1102 (2007) (harmless
error).
Analysis
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110 (West 2002). For the showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity
and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a
diagnosis including the word "chronic." Service connection
may be also granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2007).
Service connection generally requires that a particular
injury or disease resulting in disability was incurred
coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App.
247, 253 (1999).
The veteran is claiming that his Meniere's disease is
secondary to service-connected bilateral sensorineural
hearing loss and tinnitus. Service connection may be
established on a secondary basis where the evidence shows (1)
that a current disability exists and (2) that the current
disability was either (a) caused by or (b) aggravated by a
service connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995); see also 38 C.F.R. § 3.310(a) (2007).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107
(West 2002). A veteran is entitled to the benefit of the
doubt when there is an approximate balance of positive and
negative evidence. See 38 C.F.R. § 3.102. When a veteran
seeks benefits and the evidence is in relative equipoise, the
veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49
(1990). The preponderance of the evidence must be against
the claim for benefits to be denied. See Alemany v. Brown, 9
Vet. App. 518 (1996).
Upon review, service medical records do not show any
complaint, finding, or treatment of Meniere's Disease. A
July 1967 clinical record noted complaints of right ear
hearing loss and tinnitus onset while working. Dizziness was
not noted. The impression was probable sensorineural hearing
loss. The veteran testified in February 2002 that he had
dizziness in service, but the attending physician referred to
his symptoms as stomach pain. (T. 12, February 2002
Hearing). A May 1968 clinical record noted complaints of
stomach pain, but there was no reference to dizziness, or
diagnosis of Meniere's disease at that time. The August 1968
separation examination was also negative for complaints of
dizziness or clinical findings of dizziness or Meniere's
syndrome.
VA treatment records dated in 1970 through 1972 showed
evaluation and treatment for ear problems, but there was no
reference to dizziness or diagnosis of Meniere's disease. A
VA examination in June 1972 specifically indicated that the
veteran had no complaint of dizziness.
The first medical evidence of treatment for complaints of
dizziness was noted in 1980. An August 1980 private medical
record reported treatment of the veteran for problems with
persistent dizziness that lasted for three to four weeks. VA
outpatient records for August and September 1980 indicated
treatment for episodes of true vertigo accompanied by
pressure in the right ear and cited a work-up by private
physicians in Worchester that had included a diagnosis of
Meniere's Disease.
Since 1981, the veteran has continued to be treated for and
diagnosed with Meniere's Disease. In an April 1984 Social
Security Administration (SSA) decision, the veteran was
awarded SSA disability benefits. The decision noted a
primary diagnosis of Meniere's Disease and that his
disability began in March 1982.
As for the cause of the veteran's Meniere's Disease, an
August 1981 VA examination included a diagnosis of Meniere's
Disease; however, the physician stated that he doubted very
much that the Meniere's Disease was secondary to hearing
loss. This examination was determined to be incomplete, in
that it had not included a discussion of the etiology of the
Meniere's Disease, so another VA examination was performed
later in August 1981 by the same physician. The physician
opined that the veteran's dizziness was not at all secondary
to his deafness that was observed in 1972, noting that the
veteran did not complain of dizziness associated with
deafness in 1972. It was pointed out that Meniere's Disease
was a distinct entity. The physician expressed doubt as to
whether the veteran had Meniere's Disease as opposed to
occasional bouts of vertigo. In any case, the physician
opined that Meniere's Disease was not caused by hearing loss.
A private medical record from J. B.L., M.D. dated in August
1981 noted that the veteran's dizziness began several weeks
prior to his first being seen in August 1980. It was
reported that noise exposure or unrelated disability such as
Meniere's Disease could result in a hearing loss, but that
this was unlikely in the veteran's case. A private medical
record from H.K, M.D. dated in September 1982 noted that the
veteran's complaints of vertigo were secondary to his
Meniere's Disease. There was no mention of hearing loss or
other etiological opinion noted. A private examination
performed by J.G.O., M.D., P.C., for purposes of determining
SSA disability benefits, dated in March 1984, indicated that
the cause of Meniere's Disease was not well known, although
the effects were.
A May 2001 VA ear examination report provided no etiological
opinion; however, in an October 2001 addendum report, the May
2001 VA physician stated that "the connection between
acoustic trauma and Meniere's Disease is not well established
in medical literature. Accordingly, I do not believe the
patient's Meniere's Disease is related or connected to his
service and noise exposure, including the nearby explosion in
1967."
The evidence summarized above indicates that Meniere's
Disease was not shown in service and not first diagnosed
until 1980, many years following separation from service.
The clinical history at the time he was diagnosed suggested a
recent onset of pertinent symptoms. While the veteran has
been diagnosed with Meniere's Disease since 1980, there is no
competent medical evidence of record attributing his
Meniere's Disease to service or his service-connected
bilateral sensorineural hearing loss and tinnitus. In fact,
the etiological opinions indicate no relationship between
Meniere's Disease and service, or his service-connected
bilateral sensorineural hearing loss and tinnitus.
In support of his service connection claim, the veteran
submitted medical articles on tinnitus and copies of prior,
redacted decisions by the Board that dealt with Meniere's
Disease.
The Board concludes that the medical articles on tinnitus
have little probative value. One article on tinnitus
discusses Meniere's Disease and its symptoms, but does not
address the question of etiology. The Merck Manual of
Diagnosis and Therapy article on tinnitus notes that tinnitus
symptoms may occur as a symptom of nearly all ear disorders,
including Meniere's Disease, noise-induced hearing loss,
acoustic trauma, and head trauma. However, the article does
not discuss whether Meniere's Disease is caused by tinnitus.
The redacted Board decisions submitted by the veteran are
also of limited probative value. Although the redacted Board
decisions submitted by the veteran included findings that
Meniere's Disease was related to hearing loss and tinnitus
for the unique set of facts presented in each of those cases,
the Board notes that its prior decisions carry no
precedential value in subsequent Board adjudications.
Therefore, a grant of a VA benefit based on a set of facts in
one case does not carry any weight for a different set of
facts presented as to the same disorder or disability.
The veteran is also asserting that his Meniere's Disease is
related to an in-service head injury. In support of this
assertion, the veteran submitted in September 2003, through
his representative, articles on Meniere's Disease showing a
causal relationship between head injuries and Meniere's
Disease, a buddy statement from C.D. indicating that he
witnessed the veteran hitting his head and hurting his back
from a fall in service, and a private medical statement from
M.S.A., M.D. dated in July 2003.
Upon review, service medical records in October 1965 note
treatment for low back pain related to a fall off a stand.
The records also show treatment for other low back complaints
in service. However, there is no reference to any head
injury in service. There were no complaints of residuals of
a head injury on separation examination, or on VA examination
in 1972. While the veteran is competent to state that he
injured his head in service, there is no corroborating
medical evidence in support of his assertion. Further, the
medical evidence shows no residuals of a head injury in
service or after service. There is no competent medical
evidence supporting the veteran's claim that a head injury in
service resulted in his Meniere's Disease. The July 2003
private medical statement from Dr. Ahn provides no
etiological opinion that the veteran's Meniere's Disease is
due to an in-service head injury, or is otherwise related to
service. Dr. Ahn did state that Meniere's Disease can cause
hearing loss, but he did not indicate that the veteran's
hearing loss caused his Meniere's Disease.
The veteran testified that he had dizziness in service and
had symptoms of dizziness consistent through the 1970s and
into the 1980s. (T. 5, February 2002 Hearing). The veteran
is competent to state that his symptoms of dizziness;
however, this assertion is contradicted by the medical
evidence of record. Complaints or reporting of dizziness is
not noted in the service medical records or on the separation
examination report. When the veteran was first treated for
Meniere's Disease in the early 1980's, he related the recent
onset of symptoms of dizziness. Importantly, the VA
examination in 1972 specifically indicates that the veteran
did not have dizziness, nausea, or severe headaches. The
veteran did complain of hearing loss and tinnitus at that
time. The Board finds that the medical evidence above is of
greater probative value than the veteran's assertion.
As the preponderance of the evidence is against the claim,
the reasonable doubt doctrine is not for application. See 38
U.S.C.A. § 5107(b) (West 2002); see also Gilbert, supra.
In view of the foregoing, service connection for Meniere's
disease must be denied. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.301, 3.303, 3.310 (2007).
ORDER
Service connection for Meniere's Disease secondary to
service-connected bilateral sensorineural hearing loss and
tinnitus is denied.
L. HOWELL MARY GALLAGHER
Acting Veterans Law Judge
Veterans Law Judge
Board of Veterans' Appeals
Board of Veterans' Appeals
__________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs